Discharge of jury
34 At the close of my summing up to the jury the jury there was no request by counsel for any further directions and the jury then retired to consider their answers to the questions given to them for consideration.
35 The imputations said to arise, and in relation to which the jury were required to reach answers, were:
(a) The plaintiff accepted a bribe of $2 million;
(b) The plaintiff, in breach of his duties as a director of ANI, voted for ANI to make a disastrously bad decision to buy ABT because Kerry Packer, whose company owned ABT, agreed to pay him $2 million;
or
(c) The plaintiff breached his duties as a director of ANI by selling his co-operation to Kerry Packer;
(d) The plaintiff, as a director of ANI, dishonestly voted for ANI to make a disastrously bad decision to buy ABT because Kerry Packer, whose company owned ABT, agreed to pay him $2 million;
(e) The Plaintiff committed a serious breach of his duties as a director of ANI by agreeing that ANI take over substantial liabilities owed by Consolidated Press even though he knew taking on such a burden was clearly incorrect;
(f) The plaintiff, as a director of ANI, dishonestly changed calculations valuing the deal for ANI to buy ABT so that the deal would not have to be approved by shareholders;
(g) The plaintiff breached his duties as a director of ANI by changing calculations valuing the deal for ANI to buy ABT so that the deal would not have to be approved by shareholders;
(h) The plaintiff, as a director of ANI, acted contrary to shareholders' interests by deliberately concealing from shareholders key aspects of the deal for ANI to purchase ABT.
36 Imputations (b) and (c) were put in the alternative.
37 After some deliberation the jury indicated that they had answers to the questions asked of them and I reconvened the court to take those answers. The jury answered that imputations (a), (b), (e), (f), (g) and (h) were not conveyed.
38 The jury answered 'yes' to the question of whether imputation (c) was conveyed but 'no' to the question of whether it was defamatory.
39 The jury answered 'not applicable because of the wording' to imputation (d).
40 Such answer was clearly not an answer available to the jury. After seeking the assistance of counsel, I requested them to return to the jury room for further deliberation of whether they had a unanimous answer to the questions asked in relation to imputation (d).
41 The jury then notified me by note saying:
'We have reached agreement in respect of matters 1(d) and 3(d). The jury's apologies for mis-reading the instructions'.
42 The Court was reconvened and at that time the defendant made an application to discharge the jury. The application was on the bases that:
(a) the jury had demonstrated a lack of understanding of what was required of them;
(b) unfairness to the defendant since the jury would not reach a fair decision on imputation (d);
(c) uncertainty as to whether the confusion over imputation (d) 'infected' the other answers and the lack of power in the Court to question to jury to determine this controversy; and
(d) an apparent perversity in relation to the jury answering 'Yes' to imputation (c) being carried but 'no' to it being defamatory.
43 This final ground in the application was on the basis that neither the plaintiff nor the defendant - nor myself in the summing up - had put to the jury that if any of the imputations were conveyed they would not be defamatory.
44 Indeed, Mr Walker, SC, for the defendant had said to the jury:
So that is questions 3 and 4 looked after. They will double up. What about question 2? Mr McClintock is not known for his timidity as an advocate. I would probably not say a lot if they are defamatory. If is not a bad profit [sic]. I am not going to waste your time suggesting that if any of these things were conveyed they would not have intended [sic - damaged] Mr Reading and [sic] in the estimation of the ordinary decent members of the community. There are some you might wonder about and discuss amongst yourselves. There is really nothing a barrister can add to that question.
Some of them are really obviously. Ones Mr McClintock emphasised correctly, from his point of view, accepting a bribe. I can't think of any way that could be anything other than bad about anybody. You might think that all of them are pretty much in the same category. It is very difficult to see any worth spending time on. You might think H would be worth thinking about because you might think some things about company law that I will speak to you about later that shareholders aren't entitled to know everything.
45 Of course, the question of whether something is conveyed, or whether it is defamatory once conveyed, is a question solely for the jury. So much is mandated by s 7A(2) of the Defamation Act 1974. However, the apparent inconsistency in the answers, once these submissions had been put to the jury, did raise a concern over whether the jury had properly understood their function. This concern was compounded by their answer to questions relating to imputation (d).
46 I was satisfied that the plaintiff's submissions were persuasive and so acceded to the plaintiff's application. The defendant submitted that I should receive the jury's answer to questions relating to imputation (d) and I acceded to that application. The jury returned the answer 'no' to whether the imputation was conveyed. I then discharged them.
47 In the extraordinary circumstances of the jury seeming to misunderstand their function I also ordered that the matter be stood over for a fresh hearing.
48 This was not simply perversity but involved contradictory, inexplicable conclusions contrary to the common ground of the parties represented by experienced counsel. There seems to be an argument of common sense and efficiency that these controversies should be resolved at a trial level rather than requiring the parties to seek appellate relief with attendant costs and delay.
49 I am conscious that s 55E of the Jury Act 1977 states that a jury is automatically discharged after returning a verdict. However, I also note Part 34 r 8A of the Supreme Court Rules (which applies to proceedings commenced by statement of claim pursuant to Pt 34 r 2(1) of the Rules) provides:
Where, at a trial with a jury, a verdict is given or a finding or assessment is made, the Court may, on the motion of any party or of its own motion, give judgment as it thinks fit notwithstanding the verdict.
50 I am therefore satisfied that I have power to reject the answer given by the jury in these extraordinary circumstances where they seem to have misdirected their minds to the questions asked of them in such a fundamental way as to amount to no clear answer of the questions asked of them and where it seems they have misapplied the directions of law given to them in submissions by the parties and in summing up. The cure for such a breach of the jury function is, in my view, and pursuant to Pt 34 r 8A, either a redirection or, if that will not cure the apparent defect, a discharge.
51 The Court of Appeal has approved judges using this Rule to take a verdict but enter judgment different to that verdict in Turner v Ku-Ring-Gai Municipal Council (1990) 72 LGRA 60 at 70.
52 There is little case law to guide the discretion to exercise such power. However, I note that in Australian Iron and Steel Ltd v Greenwood (1961) 107 CLR 308 Windeyer J said at 327:
The validity of [the jury] verdict does not depend upon whether a court approves it, but on whether it is the result of an honest performance of their duty.